Summary

Despite nationally significant infrastructure projects (“NSIPSs”) emerging through the UK Planning Act 2008, they are, however, being hit by series of judicial review challenges. We outline below the five judicial review applications that have so far been made against NSIP application decisions.

It is interesting to note that the Planning Act regime has always required claims to be launched within six weeks of the Development Consent Order being published. However, the greater delays occur after the claim has been made. Although the development consent orders are in force during such judicial review challenges, the promoters are unlikely to start implementing projects in case they get overturned. This has a delay on the implementation of projects, which in some cases could mean that promoters/funders decide to pull out. 

Judicial review challenges

Hinkley Point C nuclear power station challenges

The Hinkley Point C nuclear power station has been subject to two challenges. The first was from An Taisce, the Irish counterpart to the National Trust, who have challenged on the ground that the Irish government should have been consulted on transboundary effects as part of environmental impact assessment. This was heard in the High Court on 5 December 2013 and the claimant’s case was dismissed.

The second challenge was by Greenpeace, who argued that development consent should not have been granted when the Government had no viable option for the long-term storage of nuclear waste. The challenge was dropped in October 2013.

Assuming there is no appeal of the decision (and the judge also declined to make a reference to the European Court of Justice), EDF Energy will finally be able to implement its development consent order, 9 months after it was granted (DCO was granted on 19 March 2013) but after it has discharged all the requirements that must be complied with before construction can start.

Preesall gas storage challenge

Halite Energy had challenged the refusal of consent for its gas storage project in Lancashire, which had been blocked in April 2013 by the energy secretary Ed Davey against the recommendation of a panel of three commissioners.

The panel had recommended to the secretary of state that development consent should be granted, subject to the receipt of an open land certificate. The panel concluded that the adverse impacts of the proposed development would not outweigh its benefits. But in a decision letter issued on behalf of Ed Davey, energy minister Greg Barker said that he had decided to refuse the application. The letter said that a "clear gap" in geological data contained in the application meant that Halite Energy Group "have failed to demonstrate the suitability of the geology at the site for salt cavern storage". The absence of "such an essential element" of the project "bears heavily" on the minister’s decision, according to the letter.

This challenge was heard in the High Court on 10 December 2013. Halite Energy argued that the decision was irrational and perverse and based upon an unfair and flawed assessment of the geological challenges the company faced. Ordering a full reconsideration of Halite's planning application, the judge said too high a threshold had been imposed on the company when it came to assessing the viability of the project and the geological challenges it faced. The judge said the "real deficiencies" in the secretary of state's reasoning were enough to make his decision "irrational".

The quashing of the Secretary of State’s refusal means that Halite’s application will now have to be re-determined. Halite will want to move forward from this swiftly, given it is nearly a year since development consent was granted, but the details of the next steps are still to be worked through as this has never happened before.

Rookery South energy from waste project challenge

The Rookery South (Resource Recovery Facility) Order 2011 was made by the then Infrastructure Planning Commission in 2011, and confirmed by a Joint Parliamentary Committee in 2013. The application was made on 5 August 2010.

FCC Environmental  had challenged the development consent order, and the decision of the Secretary of State for Energy and Climate Change not to change or revoke it, as it claimed that (1) the decision to award compulsory acquisition powers in respect of it was flawed as a result of a failure to provide adequate reasons for concluding that there was a compelling case in the public interest; and (2) the Secretary of State had failed, in light of the delay between the making of the development consent order and its finally coming into force, to consider whether it was necessary to update the environmental information available to him. FCC Environmental argued that this was necessary to ensure that the development consent order was based on current knowledge as required by European and domestic law. The challenge was heard on 5 and 6 February 2014. The judge dismissed the claim which meant that the DCO emerged at last from the Planning Act regime on 6 February 2014, 3 years after the development consent order was granted.

Given this delay (and even though the Growth and Infrastructure Act 2013 has nearly dispensed with the Special Parliamentary Procedure stage), it is unlikely that it will be built.

Heysham to M6 link road challenge

Campaigners against the link road, Transport Solutions for Lancaster and Morecambe (TSLM), had requested permission to apply for a judicial review to challenge the decision by the Secretary of State to grant approval for the project.

TSLM sought to argue five grounds overall, including that Lancashire County Council had failed to properly consult the public on the proposed road, that the Secretary of State had failed to properly take account of the potential impact of the project on the local otter population and had improperly taken into account National Policy Statements on other NSIP types.

Following a two-day hearing held in July 2013, a judgment was issued by the High Court in October 2013, which rejected all five grounds put forward for the challenge and refused TSLM permission to make the application for judicial review. The High Court judge found that there was no substance in any of the grounds of challenge and was critical of the action of the campaigners. TSLM made further applications to the Court of Appeal, asking for the High Court's judgment to be overturned. The last of these was made in November 2013 during an oral hearing, when the judge again refused the application.

The county council was very disappointed that objectors to the link road had asked for a judicial review as this increased the costs of the scheme and has had an impact on the construction start date.

Conclusion

Challenges are taking a long time: the Rookery South challenge was heard nearly a year after the event being challenged took place, the Hinkley Point C challenge nearly 10 months later; and the Preesall challenge exactly 8 months later. It is all very well having a fast-track consenting regime, but if projects can then suffer lengthy delays in the courts, the aims of the regime have not been realised.

Perhaps the reforms to judicial review and the recent announcement for a planning court will reduce the chance of, and speed up, challenges. The need for a specialist planning court, which will provide a quicker and more effective system for dealing with claims, has been pursued for some time and is a move to be welcomed. However, its success will depend upon it being adequately resourced, as well as the court demonstrating its willingness to dispose of meritless claims swiftly, without the need to appear at a time-consuming and expensive hearing. Irrespective of the new specialist planning court, there remains the need to deal with the huge backlog of judicial review cases that are currently slowing down the entire system.